Linda N. Coats, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas) Agency.

Equal Employment Opportunity CommissionNov 2, 1998
01976990 (E.E.O.C. Nov. 2, 1998)

01976990

11-02-1998

Linda N. Coats, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas) Agency.


Linda N. Coats v. United States Postal Service

01976990

November 2, 1998

Linda N. Coats, )

Appellant, )

) Appeal No. 01976990

v. ) Agency No. 4H-330-0204-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Areas) )

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision (FAD) was issued

on August 26, 1997 and received by appellant on September 2, 1997.

The appeal was postmarked September 20, 1997. Accordingly, the appeal

is timely, (See 29 C.F.R. � 1614.402(a)), and is accepted in accordance

with EEOC Order 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether appellant's allegation states a claim

under Title VII.

ANALYSIS AND FINDINGS

The record indicates that on May 21, 1997, appellant filed a formal

EEO complaint alleging that she was discriminated against because

of retaliation (prior EEO activity) when on November 7, 1996, she was

harassed by her supervisor who instructed that she complete her route in

eight (8) hours, which, according to appellant, could not be completed

in eight(8) hours. Appellant states in her complaint that she "want[s]

fair and equal treatment and do[es] not want to be harassed by [her

supervisor]."

The agency dismissed appellant's complaint on the basis that it fails

to state a claim. In accordance with 29 C.F.R. �1614.107(a), the agency

shall dismiss a complaint or a portion of a complaint that fails to state

a claim. The regulations at 29 C.F.R. �1614.103 provide that an agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against

by the agency due to race, color, religion, sex, national origin, age,

sex-based wage discrimination, disabling condition or retaliation.

An employee is aggrieved when he or she has suffered a present harm or

loss with respect to a term, condition, or privilege of employment for

which there is a remedy. Riden v. Department of Treasury, EEOC Request

No. 05970314 (October 2, 1998) citing Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994). Terms, conditions,

or privileges of employment include, inter alia, promotion, demotion,

discipline, reasonable accommodation, appraisals, awards, training,

benefits, assignments, overtime, leave, tours of duty, etc. See Cobb

v. Treasury, EEOC Request No. 05970077 (March 13, 1997).

Appellant's claim of harassment should be accepted only where she has

made factual allegations which, "when considered together and treated as

true, are sufficient to state a claim either of (1) disparate treatment

regarding hiring, termination, compensation, or any other term, condition,

or privilege of employment; or (2)a hostile or abusive work environment."

Riden at p. 3, citing Cobb v. Treasury, EEOC Request No. 05970077 (March

13, 1997). We do not find that appellant's factual allegations state a

claim of disparate treatment. Appellant has not made an allegation nor

is there evidence that the statement made to appellant, requiring her

route to be completed in eight (8) hours, caused appellant to suffer any

measurable monetary loss, changes in her hours, wages, and/or other terms

and conditions of her employment. Accordingly, we find that appellant has

failed to state a claim of disparate treatment regarding a specific term,

condition, or privilege of employment.

In determining whether a harassment complaint states a claim where a

complainant had not alleged disparate treatment regarding a specific

term, condition, or privilege of employment, the Commission has

repeatedly examined whether a complainant's harassment allegations,

when considered together and assumed to be true, were sufficient to

state a hostile or abusive work environment claim. Cobb v. Treasury,

EEOC Request No. 05970077 (March 13, 1997). Harassment is actionable

if it is sufficiently severe or pervasive to alter the conditions of

the complainant's employment. Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993). An objectively hostile or abusive work environment

is created when a reasonable person would find it hostile or abusive

and the complainant subjectively perceives it as such. Harris, supra

at 21-22; Cobb v. Treasury, EEOC Request No. 05970077 (March 13, 1997).

The Commission has repeatedly found that allegations of a few isolated

incidents of alleged harassment usually are not sufficient to state

a harassment claim. See e.g. Miller v. United States Postal Service,

EEOC Request No. 05941016 (June 2, 1995)(an oral admonishment was

not sufficient to state a hostile work environment claim); Phillips

v. Department of Veteran Affairs, EEOC Request No. 05960030 (July 12,

1996) (allegations that supervisor had "verbally attacked" the complainant

on one occasion, attempted to charge him with AWOL, and disagreed with

the time the complainant entered into a sign-in log, were insufficient to

state a harassment claim); Backo v. USPS, EEOC Request No. 05960227 (June

10, 1996)(supervisor's remarks on several occasions, unaccompanied by any

concrete action, were not sufficient to state a claim); Henry v. USPS,

EEOC Request No. 05940695 (February 9, 1995)(an allegation that, on one

occasion, a supervisor questioned the complainant about his requested

schedule revisions, did not state a claim). Appellant alleges that her

immediate supervisor, pursuant to a more senior supervisor's instruction,

told appellant to complete her route in eight (8) hours. There are no

allegations of additional harassing comments in the complaint, nor claims

of unwelcome touching in any manner. Accordingly, the Commission finds

that, accepting the appellant's allegations as true, the allegations are

not sufficient to indicate that the appellant may have been subjected

to harassment that was sufficiently severe or pervasive so as to alter

the conditions of employment. Accordingly, it is the decision of the

Commission to AFFIRM the agency's dismissal of appellant's complaint

for failure to state a claim.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. If you file a civil action,

YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE

OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS

OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in

the dismissal of your case in court. "Agency" or "department" means the

national organization, and not the local office, facility or department

in which you work. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

Nov 2, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations